A non-governmental organisation (NGO) funding a peaceful protest is not grounds for cancelling its registration under the Foreign Contribution (Regulation) Act (FCRA), the Kerala High Court recently said.
The observation was made by Justice Bechu Kurian Thomas while hearing a plea by two NGOs whose FCRA renewal applications were rejected by the Union government for allegedly funding protests at Vizhinjam Port. The government did so on the basis of a report by the Central Security Agency (Intelligence Bureau).
‘No material evidence’
According to LiveLaw, the allegation was that funds were transferred from the NGO Save A Family Plan India to another NGO, Trivandrum Social Service Society (TSSS), which in turn diverted funds to the NGOs SAKHI and SEWA, which then funded the protests.
However, the NGOs denied any such funding. They also told the court that they had been receiving foreign funding for decades and had maintained a clean track record. They said the “funds were only transferred to other FCRA-registered NGOs for welfare programmes.”
The Union government argued in court that the right to receive foreign funding is not a fundamental right. “Since FCRA is a national security legislation and since foreign funding cannot be used for any activity detrimental to national interests, which was done by the petitioners as revealed in the field inquiry,” the counsel for the Union government said, as per the LiveLaw report.
The court, however, observed that the Central Security Agency (Intelligence Bureau) report contained no material to establish this flow of funds. “The report has not even identified any financial trail between the petitioner and any of the protestors directly.”
Moreover, the court said that a protest cannot be deemed to be against public interest simply because the government did not agree with it. “Executive or administrative distaste for protests or dissents cannot convert the exercise of a constitutionally protected right into an 'undesirable purpose' or as against 'public interest'.”
‘Petitioner should be told reason for rejection’
The petitioner NGOs also said they were denied an opportunity to challenge the rejection of their FCRA renewals. Nor were they given a clear reason for the rejection.
In response, the Union government told the court that there was no statutory mandate to reveal the reason for the rejection. The Central Security Agency report was produced before the court in a sealed cover, with the government arguing that the petitioners could not be told the reason for the rejection, LiveLaw reported.
Rejecting this argument, the court said, “An order without reason is an action born of whim and not of law. The right to be furnished with reasons is, undoubtedly, an indispensable part of a sound judicial system…There is not even a whisper about the clarifications given by the petitioner or as to how the petitioner can even be blamed for the alleged nature of use of the funds it transferred to another FCRA-registered organisation.”
Concluding that the petitioners were entitled to have their FCRA registrations renewed, the court directed the authorities to pass fresh orders within three months.